News: NY Times Reports Supreme Court Unsympathetic To Argument That Arbitration Agreement Can Be Invalidated Because It Does Not Permit Class Arbitration Of Federal-Law Claim

On November 20, 2012, I posted about American Express Company v. Italian Colors Restaurant, the case now before the Supreme Court in which merchants have challenged American Express’s practice requiring them to accept its credit cards as a condition to accepting its charge cards. (Charge cards amounts must be paid off each month, while credit cards can run a balance). The merchants’ problem is that their agreements with American Express are subject to arbitration and a class action waiver, and it is prohibitively expensive to challenge American Express’s business practices in arbitration, when the upside for a typical claimant might be only $5,000.

On February 27, 2013, Binyamin Appelbaum reports in the New York Times that the oral argument does not augur well for the merchants. A majority seems to be leaning toward requiring the merchants resolve their complaints through arbitration, though it may be prohibitively expensive to do so. Justice Breyer, who in the past has favored limiting arbitration, is quoted as saying, “It is an odd doctrine that just says, plaintiff by plaintiff, you can ignore an arbitration clause if you can get a case that’s expensive enough.”

Augur holding lituus. Wikimedia.

So is the flip side to such an “odd doctrine” that you can have a right to complain about an antitrust violation, without a practical remedy, if you are a party to an arbitration clause with a class action waiver?